Patent Interference No. 103,812
Similarly, Dr. Rosenquist explains (RR, p. 9, paragraph 11):
If the hindered phenolic hydroxy group had been reacting with the polycarbonate,
the product 5249-58 would have been a difunctional comonomer, with the
hydroxyl group reacting with a chloro of the phosgene and the carboxyl group
reacting with an hydroxyl of the bis-phenol A, to form a polyester polycarbonate.
Therefore, no endcapping function would have been available, and the molecular
weight of the polymers would all have been many fold higher than shown above
in
paragraph 10 [wherein the data from page 305 of Dr. Rosenquist's laboratory
notebook is said to have been reproduced].
Rosenquist does not provide a factual basis for this conclusion. See In re Brandstadter,
484 F.2d 1395, 1406, 179 USPQ 286, 294 (CCPA 1973) ("the affidavits fail in their purpose
since they recite conclusions and few facts to buttress said conclusions"); Rohm and Haas Co. v.
Brotech Corp., 127 F.3d 1089, 1092, 44 USPQ2d 1459, 1462 (Fed. Cir. 1997) ("Nothing in the
rules or in our jurisprudence requires the fact finder to credit the unsupported assertions of an
expert witness."); see also In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965)
(arguments in the brief do not take the place of evidence in the record).
In any event, Rosenquist's argument is not persuasive. It appears that the benzotriazole
compounds disclosed in Narita et al., which perform an endcapping function by binding with the
polycarbonate through the hydroxyl group of the benzotriazole compound, have hindered
hydroxyl groups. See RX 2, col. 3, lines 20-39.
Therefore, based on the record before us, Rosenquist has failed to establish, by a
preponderance of the evidence, that an ester linkage within the scope of the count would
necessarily have been formed between the condensation product and the "5249-58" product.
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